The Virginia Defamation Law Blog

February 19, 2011

Prominent Defamation Lawyers Pursue Sherrod’s Libel Case Against Breitbart

Last summer, United States Department of Agriculture official Shirley Sherrod was forced to resign after conservative activist Andrew Breitbart posted online a speech that she had made 23 years before, when she worked for a nonprofit organization. The video that Breitbart posted supposedly showed that Sherrod, who is African American, had engaged in racial discrimination against a white farmer who needed financial assistance. It soon emerged, however, that the video clip that Breitbart placed online was significantly edited, and that in full context, Sherrod emerged as a supporter of equal opportunity rather than as a racist. After all that background was revealed, President Obama took the unusual step of formally and publicly apologizing to her. She was offered her job back, but she declined the offer. Instead, she hired a team of preeminent defamation attorneys to take Mr. Breitbart to court.

On February 11, 2011, Sherrod filed a defamation suit in D.C. Superior Court against Breitbart and two alleged accomplices, alleging that the depiction of her as a racist had caused her financial losses, physical symptoms, and “irreparable reputation and career damage.” Sherrod is seeking compensatory and punitive damages as well as a court order that Breitbart remove the offending material from his blog. Breitbart has not yet formally responded to the lawsuit, but he did say in a statement that he “categorically rejects the transparent effort to chill his constitutionally protected free speech.”

Defamation suits against public figures are never easy. The First Amendment has been interpreted by the Supreme Court for several decades to give a very wide berth to people who criticize public officials or discuss matters of public concern. In general, celebrities or other public figures who sue for defamation cannot win unless they can show that the defendant made the offending statement with “actual malice,” which essentially amounts to knowledge that the defamatory statements were false, or reckless disregard for their truth or falsity.

February 4, 2011

Defamation Lawsuit Exposes Redskins Owner to Ridicule

by Lee E. Berlik

It doesn’t take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, “The Cranky Redskins Fan’s Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner’s Many Failings,” which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed “an anti-Semitic caricature of himself” which “forced” him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan’s Guide to Dan Snyder? Personally, I’m not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won’t win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could successfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the “stain” he supposedly left on the Redskins are all constitutionally protected as free speech.

February 2, 2011

Virginia Supreme Court Declines to Set Aside Defamation Verdict Against County Administrator

by Lee E. Berlik

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can’t be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice — and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county’s director of Parks and Recreation. A few months before he retired, the county’s museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that before the storm, information about the likelihood of flooding “had been suppressed” by the parks director and that this “borders on negligence in my opinion.”

November 15, 2010

Defamation Claim Against Virginia Lawyer Goes Forward

by Lee E. Berlik

Statements made by litigants and their attorneys in judicial proceedings cannot form the basis for a defamation action because they are protected by an absolute privilege. But what if an attorney, desirous of increased media exposure, takes copies of what might otherwise be considered slanderous statements and forwards them to the media? Do statements made in judicial proceedings lose their privileged status when republished to third parties? The answer, according to Norfolk judge Charles E. Poston, is that it depends on whether the attorney acted with malice.

In D’Alfio v. Theuer, a sea captain sued a lawyer who had filed at least one lawsuit against him on behalf of a client claiming employment discrimination. The lawsuit, the sea captain contended, contained numerous false and defamatory allegations, such as that the captain had ordered a seaman on his ship to be handcuffed in retaliation for speaking to a newspaper reporter and that he had threatened to put him in a straightjacket. What the captain found particularly troublesome, however, was that the seaman’s lawyer faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.

The lawyer filed a “demurrer” (essentially a motion to dismiss the complaint) on the ground that the allegedly defamatory statements were protected by absolute or qualified privilege. Judge Poston overruled the demurrer and permitted the lawsuit to proceed.

December 21, 2009

Understanding Defamation

by Lee E. Berlik

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia’s “insulting words” statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. While it is common to recite that “truth is a defense,” that is not technically true, as falsity is a required element of the plaintiff’s proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation “per se,” meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

September 17, 2009

Pleading Defamation by an Employer in Virginia Isn’t Easy

by Lee E. Berlik

Getting fired or laid off is hard enough without your boss trashing your reputation to your co-workers. I receive many calls from prospective clients interested in pursuing their former employer for defamation. Virginia employers, however, have a lot of leeway in what they can say about an employee being considered for termination before they will be liable for slander or libel. Virginia recognizes a qualified privilege against defamation claims where statements by an employer are made in connection with discharging that employee. To overcome that privilege, a plaintiff must prove common law malice by clear and convincing evidence.

Consider the recent Hanover County case of Koegler v. Green, decided on September 1, 2009. Carl Koegler sued his former employer, the Richmond-East Moose Lodge, as well as several of his former co-workers and employers, for defamation. The defendants demurred (i.e., moved to dismiss the case), citing the qualified privilege, and the court agreed with them and dismissed the case. The court emphasized that defamation claims against employers in Virginia will not be permitted to go forward absent strong evidence of malice.

The facts, according to the allegations in the complaint, were as follows: Mr. Koegler was employed by the Lodge in various positions over the years. An audit conducted by the international parent company resulted in Mr. Koegler’s termination in 2008. Some of his former coworkers and managers talked to other employees about the firing. The acting Governor of the Lodge, for example, held a staff meeting and discussed what had been said in board meetings about Mr. Koegler and that Mr. Koegler had been suspended for stealing money. Another officer of the Lodge sent emails describing Mr Koegler as having “questionable character.” Mr. Koegler sued for defamation and harm to his reputation.

September 2, 2009

Defamatory Forum Posts Held No Basis for Host Liability

by Lee E. Berlik

Worried about liability for statements made by others in an online forum hosted by your website? Provided you don’t take an active role in editing the content posted by others, you shouldn’t have to worry about defamation liability. The Communications Decency Act (“CDA”), found at 47 U.S.C. § 230, provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It further provides that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

In the still-pending case of Cornelius v. DeLuca, filed in the Eastern District of Missouri, the plaintiffs, sellers of a dietary supplement called “Syntrax,” sued various competitors for libel and tortious interference with business expectancies, and also sued the owners of bodybuilding.com–a website containing a forum for Internet discussion by the public–for supposedly assisting the other defendants post false and defamatory statements to the forum. In essence, the plaintiffs tried to get around the CDA by claiming the host of the forum wasn’t a mere “provider” but an active participant in a conspiracy to post libelous, defamatory statements concerning the plaintiff’s product. The court rejected the argument and dismissed the conspiracy count.

Under the CDA, while content providers cannot be held liable for the statements of others, they can be held liable for their own statements (which is why providers need to be careful not to edit others’ statements, thereby arguably adopting the statement as their own). It is undoubtedly for this reason that the plaintiffs, realizing full well that the owners of bodybuilding.com did not make the statements at issue themselves, alleged that the owners conspired with the actual authors to allow the statements to be posted.

May 23, 2009

Virginia Employers Not Liable for Defamation on “Self-Publication” Theory

by Lee E. Berlik

Most Virginia employers these days are careful to avoid using defamatory language when terminating employees. They know that defamation actions (i.e., lawsuits alleging libel and/or slander) are best avoided by responding to inquiries from other employers by identifying an ex-employee’s dates of employment and position held, but little else. Although “truth is a defense” (statements about an employee will not be defamatory if they are true) and an employer usually has a qualified privilege to make statements that arise out of an employment relationship, no employer wants to get sued by a disgruntled ex-employee and employment lawyers are constantly thinking up new theories of employer liability.

One recent theory that has gained a following in certain states is based on the so-called “compelled self-publication” doctrine. Virginia, however, is not one of those states, according to a memorandum opinion issued on May 6, 2009, by a federal court sitting in Richmond.

Here’s how the theory works. First, to bring a claim for defamation in Virginia as well as in most other states, a plaintiff must allege not only a defamatory statement made with the requisite intent, but that the statement was “published” (i.e., made) by the defendant to a third party. The idea behind “compelled self-publication” is that even if a careful employer does not publish the reasons for an employee’s termination to a third party, merely having a false, pretextual justification for the termination in the employee’s personnel file should make the employer liable for defamation because it somehow compels the discharged employee to tell prospective employers the reasons he or she was fired.

April 22, 2009

Culpeper Cops Discover Sexting, Get Sued

by Lee E. Berlik

A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone. According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone. Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend. The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs. Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone. The school told him he would not be recommended for another term, and he resigned.

Mr. Newhard describes the litigation as a case brought to remedy “egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution” and asserts counts for “deliberate indifference,” “right to privacy,” “outrageous conduct,” defamation, intentional infliction of emotional distress, and failure to train.

It will be interesting to see which claims stick. I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries). A claim that appears to be missing is tortious interference with contractual relations. If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.